Johnson v. Asphalt Hot Mix

Decision Date29 June 1990
Citation565 So.2d 219
PartiesGeorge Allen JOHNSON, Jr. v. ASPHALT HOT MIX, et al. 88-1507.
CourtAlabama Supreme Court

Charles N. Reese of Reese & Reese, Daleville, for appellant.

William L. Lee III of Lee & McInish, Dothan, and Joseph W. Adams, Ozark, for appellees.

ALMON, Justice.

This is an appeal from a partial summary judgment entered in favor of defendants Asphalt Hot Mix, Inc., Doris Mezick, and Charles Baggett, and against the plaintiff, George Allen Johnson, Jr., in a personal injury action.

Johnson was burned in an on-the-job accident while employed by Asphalt Hot Mix, Inc. ("Asphalt"). Some months after his injury, Johnson executed a "Release of All Claims," which stated in pertinent part:

"KNOW ALL MEN BY THESE PRESENTS, That the undersigned, being of lawful age, for the sole consideration of Three Thousand and 00/100 Dollars ($3,000.00) to the undersigned in hand paid, receipt whereof is hereby acknowledged, does hereby and for his heirs, executors, administrators, successors and assigns release, acquit and forever discharge Asphalt Hot-Mix, Inc., the Estate of Mark Donnell, Jr., Doris Mezick, Charles J. Baggett, and any co-employees of George Allen Johnson, Jr. and their or its agents, servants, successors, heirs, executors and administrators of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on his job with Asphalt Hot-Mix, Inc., wherein George Allen Johnson, Jr. was burned.

"....

"This Release specifically does not apply to any claim for Workmen's Compensation."

Approximately one and one-half years after executing the release, Johnson filed an action against numerous defendants, alleging that he was entitled to recover damages under several theories.

Counts six and seven of Johnson's amended complaint contained allegations relating to Alabama's Workmen's Compensation Act ("Act"), Ala.Code 1975, § 25-5-1 et seq. Specifically, count six alleged that intentional acts of Mezick and Baggett, co-employees of Johnson, had caused his injury. A cause of action against a co-employee for his willful or intentional acts is authorized by § 25-5-11 of the Act. Count seven alleged that Asphalt had failed to pay benefits as required by the Act.

Asphalt, Mezick, and Baggett filed a motion for summary judgment, stating that the release executed by Johnson barred all of his claims. The trial court denied that motion except as to any cause of action brought pursuant to § 25-5-11. Summary judgment was entered on the claims allowed by that section. In his summary judgment, the trial judge held that the clause in the release preserving "any claim for Workmen's Compensation" did not preserve claims filed pursuant to § 25-5-11, but preserved only Johnson's right to file a claim for elective compensation under Article 3 of the Act. Johnson appeals the trial court's judgment, contending that summary judgment was improper because the release was (1) ambiguous; (2) not a part of a court-approved settlement; and (3) void as against public policy.

In the absence of fraud or ambiguity, a release supported by valuable consideration will be given effect according to the intention of the parties, which is to be judged by the court from what appears within the four corners of the instrument itself, and ordinarily parol evidence is not admissible to impeach or vary its terms. Trimble v. Todd, 510 So.2d 810 (Ala.1987); Jehle-Slauson Constr. Co. v. Hood-Rich Architects & Consulting Engineers, 435 So.2d 716 (Ala.1983); Ala.Code 1975, § 12-21-109.

Johnson did not make any allegations of fraud but contended that the release is ambiguous because it purports to release Asphalt, Mezick, and Baggett "from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever," while attempting to preserve "any claim for Workmen's Compensation," and that, under that ambiguity, the claim filed pursuant to § 25-5-11 is arguably a "claim for Workmen's Compensation." We do not agree. The language in the release is clear and unambiguous. An action against third parties or co-employees as allowed by § 25-5-11 is not a claim for Workmen's Compensation, but is a tort action for damages that is removed from the exclusive remedy provisions of §§ 25-5-52 and -53 by virtue of the exceptions set forth in § 25-5-11. Section 25-5-11(a) begins "Where...

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18 cases
  • In re Jenkins
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • January 18, 2001
    ...is one in tort for damages by an exception to the qualified immunity of a co-employee under Ala.Code § 25-5-11(a). See Johnson v. Asphalt Hot Mix, 565 So.2d 219 (Ala.1990). The cause of action is one under joint liability of a third party (supervisory co-employee) with that of the employer.......
  • O'Neal v. Kennamer
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 20, 1992
    ...(or against a co-employee, where not forbidden by the workers' compensation act) is a tort action for damages. Johnson v. Asphalt Hot Mix, 565 So.2d 219 (Ala.1990); Metropolitan Casualty Ins. Co. v. Sloss-Sheffield Steel & Iron Co., 241 Ala. 545, 3 So.2d 306 (1941). The right to which a sub......
  • Britt v. Shelby County Health Care Auth.
    • United States
    • Alabama Court of Civil Appeals
    • April 13, 2001
    ..."And, in Padgett v. Neptune Water Meter Co., 585 So.2d 900, 901 (Ala.1991), we held: "`In the recent case of Johnson v. Asphalt Hot Mix, 565 So.2d 219 (Ala. 1990), this Court stated that § 25-5-11, Ala.Code 1975, does not provide an action against an employer. Section 25-5-11(a) provides th......
  • Hartford Acc. & Indem. v. Cochran Plaster
    • United States
    • Alabama Court of Civil Appeals
    • January 13, 2006
    ...corners of the instrument itself, and ordinarily parol evidence is not admissible to impeach or vary its terms." Johnson v. Asphalt Hot Mix, 565 So.2d 219, 220 (Ala. 1990); see also Boggan v. Waste Away Group, Inc., 585 So.2d 1357, 1359 (Ala. 1991); Fassina v. Cincinnati Ins. Co., 582 So.2d......
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